Open source software is built on volunteer labor. While we could argue about the overall “point” of open source (and people definitely do), under most accepted definitions, public, volunteer contribution is a core part of how open source software functions.
However, in some cases, that volunteer contributor labor is explicitly organized, scheduled, and directed the same way employee labor is, complete with assignments, deadlines, meetings, and oversight from paid employees.
Sometimes for-profit companies in the open source industry rely on, and actively recruit, an ongoing base of unpaid labor to perform work that directly benefits those companies.
And sometimes, a single for-profit entity is the primary commercial beneficiary of that contributor labor, across an entire open source project.
When that happens, are those open source contributors still “just volunteers”?
FLSA: The Letters of Labor Law
Across the United States, workers’ rights and the labor laws that define and protect those rights vary from state to state, but since 1938, the Fair Labor Standards Act (FLSA) has set the national baseline.
The FLSA was adopted as part of the response to the exploitative labor conditions of the Great Depression. It established a federal minimum wage, formalized overtime and a 40-hour work week, and created nationwide restrictions on child labor. The FLSA is continually refined and amended to regulate working conditions in various industries and practices, codifying things like the definition of a domestic service worker and how to pay workers who receive tips.
Today, the FLSA applies to most businesses and commercial entities with “an annual dollar volume of sales or business done of at least $500,000.” For entities below that threshold, the FLSA covers individual workers who are “engaged in commerce or in the production of goods for commerce,” such as regularly using email to conduct business across state or international lines.
The FLSA broadly defines employment as individuals who are “suffered or permitted to work” , and the U.S. Department of Labor is clear that those individuals “may not volunteer services to for-profit private sector employers.”
It is worth noting that under the FLSA, entities performing “related activities … through unified operation or common control by any person or persons for a common business purpose” can be considered a single enterprise.
It is also important to note that public benefit corporations (PBCs) and corporations with privately issued “B Corp” certifications are for-profit business entities. There are no FLSA exemptions for PBCs or B Corps.
How Does This Apply to Non-Profits?
In August 2015, the Department of Labor issued a fact sheet clarifying how the FLSA applies to non-profit organizations.
“Individuals may volunteer time to religious, charitable, civic, humanitarian, or similar non-profit organizations as a public service and not be covered by the FLSA. Individuals generally may not, however, volunteer in commercial activities run by a non-profit organization, such as a gift shop.”
In other words, the FLSA recognizes volunteering as a legitimate public service. but when an organization, even one formally designated as charitable non-profit, engages in “ordinary commercial activities that result in sales made or business done,” the people doing that work can be classified as employees.
Under the FLSA, it doesn’t matter if the work is called “volunteering” or “contributing,” or even if the contributors think they are doing charitable volunteer work for a non-profit organization. What matters is what work is actually being done, and who the work is actually for.
How Does This Apply to Open Source?
The reality is that the size and scope of the open source ecosystem makes it difficult to understand, let alone regulate.
There are multiple definitions of “open source software” and more than 50 “open source” licenses with varying levels of legally enforceable restrictions. Open source advocates speak about open source as crucial “economic infrastructure” that benefits the general public, but the U.S. Internal Revenue Service often cites non-charitable activity and benefits to private interests as reasons for denying charitable status to open source organizations. And issues of open source copyright and trademark enforcement are far from settled, with some industry-shifting questions currently being raised in court.
However, you don’t have to understand the open source ecosystem to understand how the FLSA could apply to open source contributors.
The FLSA was specifically written to prevent people from building a business on top of workers who have no wage floor, no overtime, and no employee protections. And to do that, FLSA enforcement focuses on the reality of the working relationship:
Who makes the project roadmap? Who sets the deadlines? Who decides which contributors are allowed to participate? Who decides who gets commit access? Who decides what features do or don’t get included? Who enforces decisions? Who would do the work if the contributors weren’t there to do it? Who is benefiting financially from the work being done?
Why Does This Matter?
The open source industry is long overdue for a robust and nuanced dialogue about contributor labor. Not just because it would be nice for people to get paid, but because labor, whether volunteer or not, has real, legally quantifiable value.
Many open source contributions are genuinely voluntary, like submitting a bug report or helping other contributors in a forum. And contributors working on the project as part of their job are usually covered by the FLSA through their employer.
But a volunteer labor force that is directly controlled by and benefits a single for-profit enterprise is at best unsustainable and at worst may be illegal: according to the U.S. Supreme Court, “they volunteered” is not enough to dismiss wage-and-hour claims, misclassification claims, or Department of Labor complaints under the FLSA.
Across the open source ecosystem, the implications are not small:
For contributors, it means that the issues of unpaid contribution aren’t just about volunteer burnout or finding sponsorship. If you’re an open source contributor and you’ve been doing structured, expected work benefiting a for-profit enterprise as a volunteer, it’s worth considering what your legal classification is. Does your “volunteer” label match your classification under the law?
For businesses, it means that open source stewardship is about more than “giving back” to open source. If the company you represent has been financially supporting an enterprise that could be misclassifying contributor labor, it’s worth considering what you are actually supporting. Does your business want to fund an enterprise that may be violating established U.S. labor law?
For what it’s worth, I personally value and professionally advocate for open source projects and communities. Nothing I’ve said here is meant to encourage people to stop contributing to open source projects. Nor am I making legal claims or conclusions about any particular entity; as they say on the internet, I am not a lawyer.
That said … if any of this concerns you, maybe you should ask one.
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